February 2d. Story, Justice, delivered the opinion of the
court.--This is a writ of error to the judgment of the court
for the trial of impeachments and the correction of errors
of the state of New York, being the highest court of that
state, and is brought here in virtue of the 25th section of
the judiciary act of 1789, ch. 20. The original action was a
replevin for certain goods and chattels, to which the original
defendant put in an avowry, and to that avowry there
was a demurrer, assigning nineteen distinct and special
causes of demurrer. Upon a joinder in demurrer, the supreme
court of the state gave judgment against the avowant;
and that judgment was affirmed by the high court to
which the present writ of error is addressed.

[Volume 3, Page 199]

The avowry, in substance, asserts a justification of the
taking of the goods and chattels, to satisfy a fine and forfeiture
imposed upon the original plaintiff, by a court-martial,
for a failure to enter the service of the United
States as a militia-man, when thereto required by the president
of the United States, in pursuance of the act of the
28th of February 1795, c. 101. It is argued, that this avowry
is defective, both in substance and form; and it will be
our business to discuss the most material of these objections:
and as to others, of which no particular notice is
taken, it is to be understood that the court are of opinion,
that they are either unfounded in fact or in law, and do
not require any separate examination.

For the more clear and exact consideration of the subject,
it may be necessary to refer to the constitution of the
United States, and some of the provisions of the act of
1795. The constitution declares, that congress shall have
power "to provide for calling forth the militia, to execute
the laws of the Union, suppress insurrections, and repel
invasions:" and also "to provide for organizing, arming
and disciplining the militia, and for governing such part
of them as may be employed in the service of the United
States." In pursuance of this authority, the act of 1795 has
provided, "that whenever the United States shall be invaded,
or be in imminent danger of invasion from any foreign
nation or Indian tribe, it shall be lawful for the president
of the United States to call forth such number of the
militia of the state or states most convenient to the place
of danger, or scene of action, as he may judge necessary
to repel such invasion, and to issue his order for that purpose
to such officer or officers of the militia as he shall
think proper." And like provisions are made for the other
cases stated in the constitution. It has not been denied
here, that the act of 1795 is within the constitutional authority
of congress, or that congress may not lawfully provide
for cases of imminent danger of invasion, as well as
for cases where an invasion has actually taken place. In
our opinion, there is no ground for a doubt on this point,
even if it had been relied on, for the power to provide for
repelling invasions includes the power to provide against
the attempt and danger of invasion, as the necessary and
proper means to effectuate the object. One of the best
means to repel invasions is to provide the requisite force
for action, before the invader himself has reached the soil.

The power thus confided by congress to the president,
is, doubtless, of a very high and delicate nature. A free
people are naturally jealous of the exercise of military
power; and the power to call the militia into actual service,
is certainly felt to be one of no ordinary magnitude. But it
is not a power which can be executed without a correspondent
responsibility. It is, in its terms, a limited power, confined
to cases of actual invasion, or of imminent danger of
invasion. If it be a limited power, the question arises, by
whom is the exigency to be judged of and decided? Is the
president the sole and exclusive judge whether the exigency
has arisen, or is it to be considered as an open question,
upon which every officer to whom the orders of the
president are addressed, may decide for himself, and
equally open to be contested by every militia-man who
shall refuse to obey the orders of the president? We are all
of opinion, that the authority to decide whether the exigency
has arisen, belongs exclusively to the president, and
that his decision is conclusive upon all other persons. We
think that this construction necessarily results from the nature
of the power itself, and from the manifest object contemplated
by the act of congress. The power itself is to be
exercised upon sudden emergencies, upon great occasions
of state, and under circumstances which may be vital to the
existence of the Union. A prompt and unhesitating obedience
to orders is indispensable to the complete attainment
of the object. The service is a military service, and
the command, of a military nature; and in such cases,
every delay, and every obstacle to an efficient and immediate
compliance, necessarily tend to jeopard the public interests.
While subordinate officers or soldiers are pausing
to consider whether they ought to obey, or are scrupulously
weighing the evidence of the facts upon which the
commander-in-chief exercises the right to demand their
services, the hostile enterprise may be accomplished, without
the means of resistance. If "the power of regulating
the militia, and of commanding its services in times of insurrection
and invasion, are (as it has been emphatically
said they are) natural incidents to the duties of superintending
the common defence, and watching over the internal
peace of the confederacy" (Federalist, No. 29), these
powers must be so construed as to the modes of their exercise,
as not to defeat the great end in view. If a superior
officer has a right to contest the orders of the president,
upon his own doubts as to the exigency having arisen, it
must be equally the right of every inferior officer and soldier;
and any act done by any person in furtherance of
such orders, would subject him to responsibility in a civil
suit, in which his defence must finally rest upon his ability
to establish the facts by competent proofs. Such a course
would be subversive of all discipline, and expose the best-disposed
officers to the chances of ruinous litigation. Besides,
in many instances, the evidence upon which the
president might decide that there is imminent danger of
invasion, might be of a nature not constituting strict technical
proof, or the disclosure of the evidence might reveal
important secrets of state, which the public interest, and
even safety, might imperiously demand to be kept in concealment.

If we look at the language of the act of 1795, every conclusion
drawn from the nature of the power itself, is
strongly fortified. The words are, "whenever the United
States shall be invaded, or be in imminent danger of invasion,
&c., it shall be lawful for the president, &c., to call
forth such number of the militia, &c., as he may judge
necessary to repel such invasion." The power itself is confided
to the executive of the Union, to him who is, by the
constitution, "the commander-in-chief of the militia, when
called into the actual service of the United States," whose
duty it is to "take care that the laws be faithfully executed,"
and whose responsibility for an honest discharge of his official
obligations is secured by the highest sanctions. He is
necessarily constituted the judge of the existence of the
exigency, in the first instance, and is bound to act according
to his belief of the facts. If he does so act, and decides
to call forth the militia, his orders for this purpose are in [Volume 3, Page 200]
strict conformity with the provisions of the law; and it
would seem to follow as a necessary consequence, that
every act done by a subordinate officer, in obedience to
such orders, is equally justifiable. The law contemplates
that, under such circumstances, orders shall be given to
carry the power into effect; and it cannot, therefore, be a
correct inference, that any other person has a just right to
disobey them. The law does not provide for any appeal
from the judgment of the president, or for any right in
subordinate officers to review his decision, and in effect
defeat it. Whenever a statute gives a discretionary power
to any person, to be exercised by him, upon his own opinion
of certain facts, it is a sound rule of construction, that
the statute constitutes him the sole and exclusive judge of
the existence of those facts. And in the present case, we
are all of opinion, that such is the true construction of the
act of 1795. It is no answer, that such a power may be
abused, for there is no power which is not susceptible of
abuse. The remedy for this, as well as for all other official
misconduct, if it should occur, is to be found in the constitution
itself. In a free government, the danger must be
remote, since, in addition to the high qualities which the
executive must be presumed to possess, of public virtue,
and honest devotion to the public interests, the frequency
of elections, and the watchfulness of the representatives of
the nation, carry with them all the checks which can be
useful to guard against usurpation or wanton tyranny.

This doctrine has not been seriously contested upon the
present occasion. It was, indeed, maintained and approved
by the supreme court of New York, in the case of Vanderheyden
v. Young, 11 Johns. 150, where the reasons in support
of it were most ably expounded by Mr. Justice Spencer,
in delivering the opinion of the court. But it is now
contended, as it was contended in that case, that notwithstanding
the judgment of the president is conclusive as to
the existence of the exigency, and may be given in evidence
as conclusive proof thereof, yet that the avowry is
fatally defective, because it omits to aver that the fact did
exist. The argument is, that the power confided to the
president is a limited power, and can be exercised only in
the cases pointed out in the statute, and therefore, it is
necessary to aver the facts which bring the exercise within
the purview of the statute. In short, the same principles
are sought to be applied to the delegation and exercise of
this power intrusted to the executive of the nation for
great political purposes, as might be applied to the humblest
officer in the government, acting upon the most narrow
and special authority. It is the opinion of the court,
that this objection cannot be maintained. When the president
exercises an authority confided to him by law, the
presumption is, that it is exercised in pursuance of law.
Every public officer is presumed to act in obedience to his
duty, until the contrary is shown; and, a fortiori, this presumption
ought to be favorably applied to the chief magistrate
of the Union. It is not necessary to aver, that the
act which he might rightfully do, was so done. If the fact
of the existence of the exigency were averred, it would be
traversable, and, of course, might be passed upon by a
jury; and thus the legality of the orders of the president
would depend, not on his own judgment of the facts, but
upon the finding of those facts, upon the proofs submitted
to a jury. This view of the objection is precisely the same
which was acted upon by the supreme court of New York,
in the case already referred to, and, in the opinion of this
court, with entire legal correctness.

Another objection is, that the orders of the president are
not set forth; nor is it averred, that he issued any orders,
but only that the governor of New York called out the
militia, upon the requisition of the president. The objection,
so far as it proceeds upon a supposed difference between
a requisition and an order, is untenable; for a requisition
calling forth the militia is, in legal intendment, an
order, and must be so interpreted in this avowry. The majority
of the court understood and acted upon this sense,
which is one of the acknowledged senses of the word, in
Houston v. Moore, 5 Wheat. 1. It was unnecessary to set
forth the orders of the president at large; it was quite sufficient
to state that the call was in obedience to them. No
private citizen is presumed to be conversant of the particulars
of those orders; and if he were, he is not bound to
set them forth in haec verba.

The next objection is, that it does not sufficiently appear
in the avowry, that the court-martial was a lawfully constituted
court-martial, having jurisdiction of the offence, at
the time of passing its sentence against the original plaintiff.
Various grounds have been assigned in support of this
objection. In the first place, it is said, that the original
plaintiff was never employed in the service of the United
States, but refused to enter that service, and that, consequently,
he was not liable to the rules and articles of war,
or to be tried for the offence by any court-martial organized
under the authority of the United States. The case
of Houston v. Moore, 5 Wheat. 1, affords a conclusive answer
to this suggestion. It was decided in that case, that
although a militia-man, who refused to obey the orders of
the president, calling him into the public service, was not,
in the sense of the act of 1795, "employed in the service
of the United States," so as to be subject to the rules and
articles of war; yet that he was liable to be tried for the
offence, under the 5th section of the same act, by a court
martial called under the authority of the United States.
The great doubt in that case was, whether the delinquent
was liable to be tried for the offence, by a court-martial
organized under state authority.

In the next place, it is said, the court-martial was not
composed of the proper number of officers required by
law. In order to understand the force of this objection, it
is necessary to advert to the terms of the act of 1795, and
the rules and articles of war. The act of 1795, § 5, provides,
"that every officer, non-commissioned officer, or
private of the militia, who shall fail to obey the orders of
the president of the United States," &c., "shall forfeit a
sum not exceeding one year's pay, and not less than one
month's pay, to be determined and adjudged by a court
martial." And it further provides (§ 6), "that courts-martial
for the trial of militia shall be composed of militia officers
only." These are the only provisions in the act on this subject.
It is not stated by whom the courts-martial shall be
called, nor in what manner, nor of what number, they
shall be composed. But the court is referred to the 64th [Volume 3, Page 201]
and 65th of the rules and articles of war, enacted by the
act of 10th of April 1806, ch. 20, which provide, "that general
courts-martial may consist of any number of commissioned
officers from five to thirteen inclusively; but they
shall not consist of less than thirteen, where that number
can be convened without manifest injury to the service:"
and that "any general officer commanding an army, or
colonel commanding a separate department, may appoint
general courts-martial when necessary." Supposing these
clauses applicable to the court-martial in question, it is very
clear, that the act is merely directory to the officer appointing
the court, and that his decision as to the number
which can be convened without manifest injury to the service,
being in a matter submitted to his sound discretion,
must be conclusive. But the present avowry goes further,
and alleges, not only that the court-martial was appointed
by a general officer commanding an army, that it was composed
of militia officers, naming them, but it goes on to
assign the reason why a number short of thirteen composed
the court, in the very terms of the 64th article; and
the truth of this allegation is admitted by the demurrer.
Tried, therefore, by the very test which has been resorted
to in support of the objection, it utterly fails.

But, in strictness of law, the propriety of this resort may
admit of question. The rules and articles of war, by the
very terms of the statute of 1806, are those "by which the
armies of the United States shall be governed;" and the act
of 1795 has only provided, "that the militia employed in
the service of the United States (not the militia ordered
into the service of the United States) shall be subject to the
same rules and articles of war as the troops of the United
States;" and this is, in substance, re-enacted by the 97th of
the rules and articles of war. It is not, therefore, admitted,
that any express authority is given by either statute, that
such a court-martial as is contemplated for the trial of delinquents,
under the 5th section of the act of 1795, is to be
composed of the same number of officers, organized in
the same manner, as these rules and articles contemplate
for persons in actual service. If any resort is to be had to
them, it can only be to guide the discretion of the officer
ordering the court, as matter of usage, and not as matter
of positive institution. If, then, there be no mode pointed
out for the formation of the court-martial in these cases, it
may be asked, in what manner is such court to be appointed?
The answer is, according to the general usage of
the military service, or what may not unfitly be called the
customary military law. It is by the same law, that courts-martial,
when duly organized, are bound to execute their
duties, and regulate their modes of proceeding, in the absence
of positive enactments. Upon any other principle,
courts-martial would be left without any adequate means
to exercise the authority confided to them; for there could
scarcely be framed a positive code to provide for the infinite
variety of incidents applicable to them.

The act of the 18th of April 1814, ch. 141, which expired
at the end of the late war, was, in a great measure,
intended to obviate difficulties arising from the imperfection
of the provisions of the act of 1795, and especially to
aid courts-martial in exercising jurisdiction over cases like
the present. But whatever may have been the legislative
intention, its terms do not extend to the declaration of the
number of which such courts-martial shall be composed.
The first section provides, "that courts-martial, to be composed
of militia officers alone, for the trial of militia
drafted, detached, and called forth (not or called forth) for
the service of the United States, whether acting in conjunction
with the regular forces or otherwise, shall, when
necessary, be appointed, held and conducted, in the manner
prescribed by the rules and articles of war, for appointing,
holding and conducting courts-martial for the
trial of delinquents in the army of the United States." This
language is obviously confined to the militia in the actual
service of the United States, and does not extend to such
as are drafted and refuse to obey the call. So that the court
are driven back to the act of 1795 as the legitimate source
for the ascertainment of the organization and jurisdiction
of the court-martial in the present case. And we are of
opinion, that nothing appears on the face of the avowry,
to lead to any doubt that it was a legal court-martial, organized
according to military usage, and entitled to take
cognisance of the delinquencies stated in the avowry.

This view of the case affords an answer to another objection
which has been urged at the bar, viz., that the sentence
has not been approved by the commanding officer,
in the manner pointed out in the 65th of the rules and
articles of war. That article cannot, for the reasons already
stated, be drawn in aid of the argument; and the avowry
itself shows that the sentence has been approved by the
president of the United States, who is the commander-in-chief,
and that there was not any other officer of equal
grade with the major-generals by whom the court-martial
had been organized and continued, within the military district,
by whom the same could be approved. If, therefore,
an approval of the sentence were necessary, that approval
has been given by the highest, and indeed only, military
authority competent to give it. But it is by no means clear,
that the act of 1795 meant to require any approval of the
sentences imposing fines for delinquencies of this nature.
The act does not require it, either expressly or by necessary
implication. It directs (§ 7) that the fines assessed shall
be certified by the presiding officer of the court-martial to
the marshal, for him to levy the same, without referring to
any prior act to be done, to give validity to the sentences.
The natural inference from such an omission is, that the
legislature did not intend, in cases of this subordinate nature,
to require any further sanction of the sentences. And
if such an approval is to be deemed essential, it must be
upon the general military usage, and not from positive institution.
Either way, we think, that all has been done,
which the act required.

Another objection to the proceedings of the court-martial
is, that they took place, and the sentence was given,
three years and more after the war was concluded, and in
a time of profound peace. But the opinion of this court is,
that a court-martial, regularly called under the act of 1795,
does not expire with the end of a war then existing, nor is
its jurisdiction to try these offences in any shape dependent
upon the fact of war or peace. The act of 1795 is not
confined in its operation to cases of refusal to obey the
orders of the president, in times of public war. On the [Volume 3, Page 202]
contrary, that act authorizes the president to call forth the
militia to suppress insurrections, and to enforce the laws
of the United States, in times of peace. And courts-martial
are, under the 5th section of the act, entitled to take cognisance
of, and to punish delinquencies, in such cases, as
well as in cases where the object is to repel invasion in
times of war. It would be a strained construction of the
act, to limit the authority of the court to the mere time of
the existence of the particular exigency, when it might be
thereby unable to take cognisance of, and decide upon a
single offence. It is sufficient for us to say, that there is no
such limitation in the act itself.

The next objection to the avowry is, that the certificate
of the president of the court-martial is materially variant
from the sentence itself, as set forth in a prior allegation.
The sentence as there set forth is, "and thereupon, the
said general court-martial imposed the sum of $96 as a
fine, on the said Jacob, for having thus failed, neglected
and refused to rendezvous and enter in the service of the
United States of America, when thereto required as afore-said."
The certificate adds, "and that the said Jacob E.
Mott was sentenced by the said general court-martial, on
failure of the payment of said fine imposed on him, to
twelve months' imprisonment." It is material to state, that
the averment does not purport to set forth the sentence in
haec verba; nor was it necessary in this avowry to allege
anything more than that part of the sentence which imposed
the fine, since that was the sole ground of the justification
of taking the goods and chattels in controversy.
But there is nothing repugnant in this averment to that
which relates to the certificate. The latter properly adds
the fact which respects the imprisonment, because the certificate
constitutes the warrant to the marshal for his proceedings.
The act of 1795 expressly declares, that the delinquents
"shall be liable to be imprisoned by a like
sentence, on failure of payment of the fines adjudged
against them, for one calendar month for every five dollars
of such fine." If, indeed, it had been necessary to set
forth the whole sentence at large, the first omission would
be helped by the certainty of the subsequent averment.
There is, then, no variance or repugnance in these allegations;
but they may well stand together.

Of the remaining causes of special demurrer, some are
properly matters of defence before the court-martial, and
its sentence being upon a subject within its jurisdiction, is
conclusive; and others turn upon niceties of pleading, to
which no separate answers are deemed necessary. In general,
it may be said of them, that the court do not deem
them well-founded objections to the avowry.

Upon the whole, it is the opinion of the court, that the
judgment of the court for the trial of impeachments and
the correction of errors ought to be reversed, and that the
cause be remanded to the same court, with directions to
cause a judgment to be entered upon the pleadings in favor
of the avowant.